Pennsylvania Law Monitor : Pennsylvania Lawyer & Attorney : Stark & Stark Law Firm : Yardley, Philadelphia, New York, New Jersey

You see everyone doing it: checking emails, talking on cell phones, or texting while driving. Unfortunately, while most people feel this activity is harmless, it is causing accidents, injuries and even deaths. Talking on your phone or texting requires you to divert your attention away from driving. Recently, an Allegheny County case has taken issue with this behavior. The plaintiffs in Deringer v. Li alleged that the above behavior rises to the level of being “reckless” and warrants the imposition of punitive damages. Plaintiffs alleged the defendant’s behavior was reckless because he was using a mobile phone when he drove into the rear end of a motorcycle, which was stopped. Defendants filed preliminary objections seeking to dismiss the reckless claim for punitive damages asserting that the conduct was merely negligence. The Court however, disagreed and overruled the preliminary objection.   
   
The Court’s ruling in this matter is significant. In ruling in this matter, the Court was required to perform a threshold analysis of whether the use of a cell phone or texting while operating a car could support punitive damages or whether as a matter of law, such conduct can never support a punitive damages claim. By overruling the preliminary objections the Court held that a jury could find that cell phone use while operating a car is reckless conduct which can support a claim for punitive damages.

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If you are injured while attempting to rescue an individual in peril, Pennsylvania law may provide you with a legal remedy.  Pennsylvania Courts have continued to uphold the rescue doctrine, allowing plaintiffs to recover monetary damages for injuries sustained while attempting to rescue an individual who has placed themselves in a situation of urgent and immediate danger to life or property.  The rescue doctrine may also allow for recovery against the individual or entity that created the dangerous condition or situation that has caused the rescuee to be placed in peril.  See Pachesky v. Getz, 510 A.2d 776 (Pa.Super. 1986).

In order to recover based upon this doctrine, it is essential to show not only that the rescuee has been placed in a situation of peril, but that this peril was created by the negligent actions of either the rescuee himself or a third-party.  It is also essential to show that the plaintiff’s rescue attempt was reasonable, meaning that he had reason to believe that the rescuee was in immediate peril and that the rescue attempt was conducted in a reasonable manner under the circumstances.  If the plaintiff’s rescue attempt is deemed unreasonable, plaintiff’s recovery will be reduced accordingly or possibly completely nullified.

Perhaps this doctrine is best illustrated though the use of a hypothetical.  Suppose that an 8-year-old child becomes lodged between the bars of a ferris wheel at an amusement park while the ride is temporarily stopped.  The child immediately begins to scream in fear.  Upon hearing this scream and noticing the child’s predicament, the plaintiff/rescuer attempts to rescue the child by dislodging him from the ride.  The plaintiff/rescuer believes that if he fails to dislodge the child before the ride begins to move, the child will be seriously injured.  During the course of dislodging the child, the plaintiff/rescuer suffers a serious and debilitating injury to his back. 

In this situation, it seems relatively clear that the child was in a situation of immediate danger.  Accordingly, it seems clear that the plaintiff/rescuer had adequate reason to believe that a rescue attempt was necessary before the ride began to move.  Assuming that plaintiff’s attempt to dislodge the child was conducted in a reasonable manner, plaintiff’s recovery will not be reduced or nullified.  The question then becomes whether the child was placed in this situation due to his own negligence or the negligence of a third-party.  Due to the fact that the child is only 8-years-old, it may be difficult to prove that the child’s own negligence created the peril.  It can be argued that a child of this age was unable to appreciate the danger involved and simply didn’t know any better.  However, it may be possible to prevail by arguing that the amusement park negligently created the dangerous condition that caused the child to be placed in peril.  Perhaps the bars on the ride were broken or defective, allowing the child to become lodged between them or perhaps they were simply spaced too far apart.

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Pennsylvania Courts adopted Restatement (Second) of Torts § 908 for the law of punitive damages. The Restatement allows for an award of punitive damages for conduct that is “outrageous because of the defendant’s evil motive or his reckless indifference to the rights of others”  Pennsylvania Courts have held that, in certain circumstances, the act of driving while intoxicated may constitute outrageous conduct even in the absence of  a showing evil motive or malice.

In Focht v. Rabada, 268 A.2d 157, 161 (Pa. Super. 1970), the court stated that “under the appropriate circumstances, evidence of driving while under the influence of intoxicating liquors may constitute a sufficient ground for allowing punitive damages.”  The court went on to state that driving while intoxicated, with its very great potential for harm and serious injury, may be deemed “outrageous conduct” and “a reckless indifference to the interest of others,” sufficient to allow imposition of punitive damages pursuant to Restatement (Second) of Torts § 908.  Id. at 160.  “[I]n certain factual circumstances, the risks presented by a drunken driver may be so obvious and the probability that harm will follow so great that outrageous misconduct may be established without reference to motive or intent.”  Id. at 161 (emphasis added).

In Brueckner v. Stewart, 2006 WL 4821434 (Pa.Com.Pl. 2006), the court followed the reasoning in Focht and reached a similar result.  In this case, the court determined that allegations that the defendant drove under the influence of alcohol, crashed into the rear of plaintiffs’ car while moving at a high speed, and fled the scene were sufficient to show reckless indifference.  Id.  In so holding, the court stated that “to require plaintiffs to provide further detail would require them to plead evidence.”  Id.  The court went on to state that the pleading rules only require pleading of facts sufficient to enable the defendant to prepare a defense. Id.

Generally, it is important to remember to include a request for punitive damages in a case involving a defendant who was driving drunk.  Just because the Defendant was driving drunk is not going to automatically entitle a plaintiff to a punitive damages award.  In order to obtain a punitive damages award, an attorney will need develop more evidence to establish outrageous conduct.  For example, prior DUI convictions, prior alcohol related offenses, a high blood alcohol level, open containers in the vehicle or reckless speeding could be indications of outrageous conduct.

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In part two of my blog series discussing the differences between mediation and arbitration, I discussed the Arbitration process. In part three I will discuss the Pennsylvania mandatory Arbitration program.

In all cases filed in the Commonwealth of Pennsylvania, you must include a paragraph in the Complaint that originates the lawsuit stating whether the value of the case is “in excess” or “not in excess” of $50,000. The purpose of this paragraph is to determine whether the case goes to arbitration or to trial. All cases that are filed that are stated to be “not in excess” of $50,000 go through the mandatory arbitration system.

In this process the case is heard by a panel of three lawyers appointed by the court system. Medical records, and other types of documentary evidence that require live testimony in a jury trial can be introduced into evidence informally. The panel decides all legal and factual issues in the case and renders a written verdict. The verdict can be appealed by any party for any reason, however, historically, the system works quite well in resolving many of the smaller cases that would otherwise clog the court system.  If the case is appealed, the matter is scheduled for trial. When the case is tried all the legal and factual issues are presented to the jury and Judge and the prior decision of the Arbitration panel has no bearing on the outcome.

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Generally, you are eligible for Medicare after you received social security disability benefits for 24 months. If you receive disability benefits retroactively, you are eligible for Medicare beginning 2 years after the date that the social security administration or a social security judge finds that you were disabled. As an example:

Harry applies for social security benefits on December 1, 2010, claiming he was disabled from a back injury since August 1, 2008. A social security judge finds that Harry is entitled to disability benefits but finds that he was not disabled until September 1, 2010. Harry will receive his disability payments back to September 1, 2010. However, he will have to wait until September 1, 2012 to be eligible for Medicare benefits. 

Same scenario, but the judge decides that Harry was disabled as of August 1, 2008. By the time the judge makes this decision, 2 full years have passed since the date that the judge finds that Harry was disabled. Harry is immediately eligible for Medicare at the time he is awarded social security disability benefits.

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One of the distinct characteristics of asbestos is that prolonged exposure often results in multiple diseases, both benign and malignant, that can develop at different times in someone’s life. This characteristic has proven uniquely challenging in the context of asbestos litigation.

Until 1992, Pennsylvania was considered a “one disease” state, which meant that plaintiffs were required to bring all possible asbestos claims relating to the same exposure in one lawsuit. Under this rule, the statute of limitations on all claims relating to asbestos exposure began to run when a plaintiff was first diagnosed with an asbestos related disease. The practical implications of such a rule meant that a plaintiff who was diagnosed with a nonmalignant asbestos disease was required to include claims relating to fear of developing cancer in the future within the same lawsuit. 

This all changed in 1992 when the Pennsylvania Superior Court decided the case of Marinari v. Asbestos Corp. Ltd., 612 A.2d 1021 (Pa.Super. 1992). This case established a “separate disease” rule in Pennsylvania, allowing a plaintiff who had previously brought a claim for a nonmalignant asbestos related disease to later bring another claim for a separate asbestos-related cancer arising out of the same exposure. The Mariani ruling has effectively eliminated the need to include claims relating to fear of developing cancer. Mariani has also allowed plaintiffs who have been diagnosed with an asymptomatic asbestos related disease to forgo filing a lawsuit until they are later diagnosed with a more serious disease.

While the Mariani ruling clearly applies to cases where a plaintiff develops asbestos-related cancer after previously bringing a claim for a nonmalignant asbestos related disease, it has yet to be extended to a situation where a plaintiff develops asbestos-related lung cancer after previously bringing a claim for a separate form of asbestos-related cancer such as mesothelioma. The Pennsylvania Supreme Court recently heard argument on this issue in the case of Daley v. A.W. Chesterton, but has yet to make a ruling.

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According to the Agency for Healthcare Research and Quality (AHRQ), the United States Congress allocated $34 million for projects by that agency to contain healthcare-associated infections (HAIs). These are infections that patients develop while being treated for another condition and are rampant by current estimates, accounting for one of the top ten causes of death in this country.

Financially, the burden is overwhelming, representing $28 to 33 billion additional healthcare costs annually, according to the CDC. In Pennsylvania, CHOP and the University of Pennsylvania are participating in two of the 22 projects begun by a multi-agency cooperative effort.

Changing the course at the provider level, however, can be daunting for a number of reasons. First, the cost-benefit of doing so may not be readily apparent. Second, according to the September 2010 Pennsylvania Patient Safety Advisory in “Demonstrating Return on Investment for Infection Prevention and Control”, entities may be ill-equipped to estimate the real institutional cost. The Safety Authority also notes that there may be an expectation that HAIs are part and parcel of the risk of doing business with older/sicker patients or that reimbursement covers the additional costs.

Challenging these myths merely requires a look at Pennsylvania’s Health Care Cost Containment Council’s 2007 report cited by the Safety Authority. The average hospital stay in Pennsylvania was 4.4 days for a total of $35,168. When an HAI event occurs, this average skyrockets to $191,872 with an average stay of 19.7 days.

The CDC estimated that 70% of infections could have been prevented through infection control programs that include appropriate staffing levels, education, isolation and outbreak programs and an organization that encourages safety.

In its article, the Authority refers to the intangible costs of HAIs, pointing out such costs as permanent disability and lost wages. This does not come close to describing the human toll on patients who are recovering from the aftermath of an HAI, such as disfigurement, depression and lengthy immobility; all of which are consequences of an unrelated medical procedure.

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More and more, workers are being forced to drive their own vehicles when performing during working hours in order to perform work activities and duties. However, less and less, employers are providing little or no protection for employees if they are involved in an accident.

This post is part two of a nine part series discussing what you should know when driving your car during work. This installment will discuss who is insuring you? (You can view previous posts in this series online here)

If you are driving during your job and are involved in a motor vehicle accident, you may be entitled to certain insurance coverage(s). If you are an employee, you are entitled to workers’ compensation benefits and damages from the person who causes the accident.

If you are driving your employer’s vehicle you may be provided uninsured/underinsured motorist coverage if the person/entity responsible for the accident is not insured or has insufficient coverage.

If you are driving your vehicle, you may have uninsured/underinsured motorist benefits available under your automobile policy(s).

With so many unknowns, it is important to identify what coverage you have, or rather do not have, in the event that you are injured in an accident while driving during the work day. Unfortunately, work-related motor vehicle accidents occur everyday. Do not wait until the accident occurs to find out if you are properly insured. And if you, or someone you know, has been injured in a work-related accident, contact an experienced personal injury attorney to help identify what coverage(s) protects you.

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In a previous post, I discussed the Mediation process. As a follow-up to that post, I will discuss the Arbitration process. Although there are many types of Arbitrations they all have one thing in common: they are all methods of resolving a case without the use of a Judge or jury.

During arbitration, a case is submitted to an Arbitrator or Arbitrators, either appointed by the court or selected by the parties. There is usually one Arbitrator or a panel of three Arbitrators who are usually lawyers or sometimes a retired judge. A hearing is held and testimony is presented, often times more informally than in during jury proceedings, and the Arbitrator will decide the case.

Arbitrations may be binding, meaning no appeal can be taken from the result, or non-binding, meaning either party may appeal the Arbitrator’s decision. Arbitrations are a quick and efficient method of resolving cases. Unlike a jury trial where the parties wait to be called to court, an Arbitration is scheduled for a specific date to which all parties agree.  Often time, in personal injury cases, the medical records are submitted to the Arbitrator without the need for live testimony from treating physicians. Medical evidence presented this way is much less costly than live medical testimony. In the right case, where the parties agree that a jury is not necessary, Arbitrations are an efficient and cost-effective method of resolving cases.

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As I mentioned in a previous post, most personal injury claims in Pennsylvania must be brought within two years of the day the injury occurred, although there are some important exceptions to that general rule. 

Generally speaking, the two year period to bring a lawsuit for personal injuries begins to run as soon as those injuries happen.  Lack of knowledge does not stop the two year period from running.  However, a delay in starting the two year period is sometimes permitted if the injured person does not know of their injury.  In these cases the two year period starts when the injured person actually discovers the injury.  This is called the “Discovery Rule.”

This rule can be very important because sometimes an injury is not apparent until after the two year deadline has passed.

The “Discovery Rule” delays the two year period until the injured person knows or should know they have a potential claim.  A good example is when an instrument or sponge is left inside a patient during surgery.  At the time of surgery the patient may not know that something was left inside them.  If, for example, several years later a routine x-ray shows a surgical instrument inside the patient the patient may have two years from the date of x-ray to file a lawsuit even if the surgery was done more than two years earlier.     

The “Discovery Rule” is not limited to these types of cases.  The two year period does not start until the injured party “knows or using reasonable diligence should know” that they may have a claim.  So if there is some reason to suspect that you may have been injured the statue of limitations may begin to run even before you know exactly what happened. 

The deadline for filing a suit depends of the specific facts of each case so it is important to contact an attorney immediately so the deadline to file suit can be figured out for your case.  If you recently discovered an injury you did not know about contact me even if it occurred more than two years ago.  It may be still be possible to start a lawsuit.

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Winter officially begins on Wednesday, December 22, 2010. That means the snow and ice that we experienced last year will be here soon. Driving in these conditions is always a challenge. We should all be checking our cars in order to prepare for the upcoming winter. Here are some things that you should consider:

1. Be sure that you have the proper amount of anti-freeze in your car;
2. Tires - since cold weather reduces the pressure in your tires, you should check them frequently and maintain the proper amount of pressure;
3. Put an emergency kit in your car. You should include in the kit: blankets, a flashlight with extra batteries, a first-aid kit, drinking water, and jumper cables;
4. Make sure that your windshield wipers do not need replacing;
5. If you have a diesel car you should consider having an electric engine heater installed;
6. Replace cracked, glazed or frayed drive belts and visibly worn, excessively soft or bulging coolant hoses;
7. Consider putting a small shovel in your car; and
8. Be sure to drive slowly and carefully – we all know that helpless feeling when you are skidding on ice

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A vast majority of auto insurance policies contain an omnibus clause serving to extend coverage to third parties driving an insured automobile so long as they are driving the vehicle with the permission of a named insured. While such a clause can prove helpful in obtaining a settlement from an insurance carrier in a situation where you are hit by a vehicle being driven by an individual that is not a named insured, insurance carriers may also attempt to deny coverage in reliance upon this clause, stating that the driver did not obtain the necessary permission from a named insured.

At first glance, this may seem like a simple issue to resolve as the named insured either gave the driver the keys and expressly granted them permission to use the vehicle or he did not. However, Pennsylvania courts have held that the permission necessary to elevate a driver to the status of an additional insured does not have to rise to this level.  Even in a situation where the named insured did not hand over the keys, permission may be implied from the relationship between the parties.  Implied permission can be established where it is shown that the named insured saw the third party driving the vehicle and failed to object or where the relationship between the named insured and the driver was such that the named insured should have had knowledge of the third party’s use of the vehicle.  See U.S. Fidelity & Guaranty Co. V. Bilyi, 164 F.Supp. 343 (E.D. Pa. 1958; Com. v. Stair, 681 A.2d 174 (Pa. 1996).

This issue is likely to arise if you are hit by a commercial vehicle being driven by a company employee.  This is especially true if the employee happens to be driving the vehicle for “personal use” at the time of the accident.  In this situation, the insurance carrier is likely to deny coverage stating that the employee was not given permission to use the vehicle for such a purpose.  In a recent case, we were able to overcome such an issue through a showing of implied permission.  In this case, the employer asserted that he never granted the employee that was driving the vehicle permission to drive any company vehicle at any time and that he did not allow any employees to use company vehicles for personal purposes.  However, we were able to obtain testimony from the driver’s co-workers and neighbors indicating that the driver did, in fact, drive a company vehicle to and from work on regular basis.  This was sufficient to establish implied permission and as a result we were able to obtain a substantial settlement for our client.

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Should a plaintiff in a personal injury lawsuit be required to provide user names and passwords for their social network sites on MySpace and Facebook? Under Pennsylvania law, the answer appears to be YES. In the matter of Bill R. McMillen, Sr. v. Hummingbird Speedway, Inc., Louie Caltagarone, Dave Reisinger and Josie Lee Wolfe, President Judge John Henry Foradora of the Court of Common Pleas of Jefferson County ordered a Plaintiff in a personal injury case to provide his Facebook and MySpace user names and passwords to Defendants so they could review.

The Court first addressed the issue of whether the information on this social network sites is privileged. The Court specifically determined there is “no social network site privilege.” Moreover, the Court examined the privacy policies and disclaimers for the Facebook and MySpace and reached the conclusion that none of the information on these sites can be construed as confidential or subject to confidentiality. 

Based on this decision, attorneys defending personal injury claims will focus in on obtaining access to these sites because there could be a treasure trove of information. Many people post pictures and make statements without thinking about the implication on their personal injury claim.  

Here at Stark & Stark, we ask about this information during our initial client interview and intake process. We counsel our clients to be very careful as to what they post on these sites and remind them that this information could be obtained by the defendants. We also instruct our clients not delete or alter any existing posts.
 

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Some people who get social security disability benefits have to pay federal income tax on those benefits. If you file an “individual” federal tax return and your income is more than $25,000 (not including your social security benefits), you will have to pay taxes. If you file a “joint” return, you may have to pay taxes if you and your spouse have a combined income of $32,000 or more. If you are married and file a separate return, you will probably pay federal income tax on your benefits.
 

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Joseph A. Cullen, Shareholder in Stark & Stark's Accident & Personal Injury Group, has been appointed to the Bucks County Bar Association's Board of Directors. In this capacity, Mr. Cullen will assist the Bucks County Bar Association in furthering their mission to promote excellence in the legal profession.

Mr. Cullen concentrates his practice in the representation of plaintiffs in medical malpractice, personal injury and wrongful death cases. Mr. Cullen also serves as lecturer and presenter on a broad range of legal topics for organizations including the Bucks County Bar Association, the Pennsylvania Bar Institute, Villanova University School of Law, Gwynedd Mercy College, The University of Pennsylvania, Arcadia University and Central Bucks West High School. Additionally in 2010, Mr. Cullen was elected as a Republican State Committeeman for Bucks County, Pennsylvania.

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In my last entry, I briefly discussed the history of asbestos litigation in the United States and gave you some background information regarding asbestos and the diseases it may cause. In this entry, I will discuss what must be proven in order to prevail in an asbestos case. As asbestos cases can often be quite complex, I will attempt to simplify this analysis in an effort to provide you with a basic understanding.

In order to prevail in an asbestos case, a plaintiff must first prove that they have been diagnosed with an asbestos caused disease. Secondly, a plaintiff must prove that they have been exposed to an asbestos-containing product in such a manner that they have been caused to inhale asbestos fibers. In order to meet this requirement, the evidence must show that a plaintiff was in close proximity to the product and that their exposure occurred on a regular and frequent basis.

As asbestos fibers are invisible, proving a plaintiff’s exposure can often prove to be a difficult task. Often times, testimony from a plaintiff or his coworkers regarding exposure to dust from a particular product can help. However, this testimony alone is not enough. A plaintiff will likely need to offer additional evidence to show that this dust contained asbestos during the time he was working near it and that the product did not contain proper warnings.
 

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There is no greater tragedy than to lose a child. Whether it is due to a motor vehicle, or any other cause, nothing can fill the sorrow. For those who have not experienced that lost, the best we can do is hope it never happens to us. For some of those that have lost a child, the hope to change things is compelling.

This hope is the catalyst for a proposed new regulation regarding motor vehicles. In December 2010 the U.S. Department of Transportation proposed a new safety regulation to help eliminate blind zones behind motor vehicles. The new rule was proposed as part of the Cameron Gulbransen Kids Transportation Act named after two year old Cameron Gulbranse, who was killed when his father accidentally backed over him in his family’s driveway.

This proposal would expand the field of view for all motor vehicles with a gross weight of up to 10,000 pounds so that drivers could see directly behind the vehicles when the motor vehicle is in reverse. To comply, it is believed that auto manufacturers would install rear mounted video cameras and in vehicle displays in all their vehicles. It is hoped that by requiring the manufacturers to all comply by the end of 2014 that there will be a reduction in back-over deaths and injuries, not only to children but to the elderly and other pedestrians as well.

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In The Works

In Pennsylvania, House Bill 147 was introduced in January 2009 and remains “in committee.”  A similar version was sponsored in the PA Senate.  Among other provisions, they establish RN - to -patient ratios in the Commonwealth. Specifically, the legislation would establish the following minimums:

• 1 nurse:1 patient - PR and trauma emergency units;
• 1 nurse: 2 patients - Critical care, including emergency critical care and all ICUs, labor and delivery units, and post-anethesia units;
• 1 nurse: 3 patients - Ante partum, emergency room, pediatrics, step-down and telemetry;
• 1 nurse: 4 patients - intermediate care nursery and medical/surgical and acute care psychiatric units;
• 1 nurse: 5 patients - rehab units;
• 1 nurse: 6 patients - postpartum and well-baby nursing units

Why Should You Care?
Nurse-patient ratios can have a significant impact on patient outcome. A research study published in 2010 in the journal Heath Services Research, entitled “Implications of the California Staffing Mandate for Other States” by Linda Aiken, and others, compared 2006 data from three states, including Pennsylvania, New Jersey and California in terms of patient mortality and failure-to-rescue based on the nurse:patient variable.  California has long required a minimum ratio of nurses to patients. Pennsylvania’s bill  is still “in the works”.

The research found that nurses in California were assigned, on average, about one fewer patient each when compared to Pennsylvania and New Jersey.  This may not appear significant on the surface but, in fact, the ratio of nurses to patients correlated negatively with patient mortality.  In other words, the higher the ratio of nurses to patients, the lower patient mortality.  Even more disturbingly, in the med-surg areas, the difference in number of patients cared for was even greater for both Pennsylvania and New Jersey. 
   
The researchers extrapolated the findings to ascertain whether changes in staffing for the two states, Pennsylvania and New Jersey, would materially impact mortality rates.  They predicted a reduction in mortality rates by 10.6 and 13.9 percent in Pennsylvania and New Jersey respectively.

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When the Pennsylvania General Assembly passed the MCARE Act (Medical Care Availability and Reduction of Error Act) the standard for admissibility of a medical expert’s testimony in a medical malpractice action became more stringent by the imposition of specific additional requirements, not present in the more open common law standard. Prior to the MCARE Act it was generally accepted in Pennsylvania that in medical malpractice actions, an expert with a generalized knowledge of the issue at hand was permitted to testify regardless of his or her particular field of expertise or specialty, and the Court’s were given wide latitude in allowing such expert testimony.

§512 of the MCARE Act, after going through the more general qualifications necessary  states that as a General Rule, that an expert must be board certified by the same or similar approved Board and practice the same subspecialty of the defendant physician. However, § 512 (e) the Act states the following:

Otherwise adequate training, experience and knowledge.- - A Court may waive the same specialty and board certification requirements for an expert testifying as to a standard of care if t he court determines that the expert posses sufficient training, experience and knowledge to provide the testimony as a result of active involvement in or full-time teaching of medicine in the applicable subspecialty or a related field of medicine within the previous five years.
 

Recently, the Supreme Court in Vicari vs. Spiegel, 989 A.2d 1277 (Pa. 2010) ruled an expert may be permitted to testify at trial in a medical malpractice case even though the testifying expert is board certified in a different field from the defendant doctor, and even though the expert practices in a subspecialty different from the specialty of the defendant doctor.
   
In Vicari Plaintiff’s expert was a medical oncologist while the defendant physicians were a radiation oncologist and an otolaryngologist. The defense moved to have Plaintiff’s expert stricken as not meeting the standard under §512 of the MCARE Act. The Supreme Court ruled:

However, there is an exception to the same specialty and same board-certification requirements: if a court finds that an expert witness has sufficient training, experience, and knowledge to testify as to the applicable standard of care, as a result of active involvement in the defendant physician’s subspecialty or in a related field of medicine, then the court may waive the same specialty and same board certification requirements.

 

Therefore, under Pennsylvania law, though getting a Plaintiff’s expert qualified in medical malpractice is much more difficult than it once was, showing that your expert has sufficient expertise in the specific medicine applicable to the factual situation of the case, and that the Standard of Care is same or similar in different specialties on that particular issue, Plaintiff’s expert will be allowed to testify.

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More and more, workers are being forced to drive their own vehicles when performing during working hours in order to perform work activities and duties. However, less and less, employers are providing little or no protection for employees if they are involved in an accident.

This post is part one of a nine part series discussing what you should know when driving your car during work. This installment will discuss how to coordinate your benefits, and maximize your recovery.

If you are injured in a car accident during work and the accident is someone else’s fault, you have a number of claims which must be carefully coordinated.

First, you have a right to workers’ compensation benefits which provides medical and wage loss benefits. In order to receive these benefits, there are a number of procedures which must be followed in order to ensure you receive everything you are entitled to. That is why it is crucial for you to consult an experienced workers’ compensation attorney who can guide you through this process.

In addition to your workers’ compensation claim, you may have multiple accident-related claims. You could have a claim for damages against any person who is responsible for the accident. This could involve multiple persons or entities. You may also have claims for damages under other policies of insurance that may provide protection to you in the event of a work-related car accident.

Identifying the benefits you are entitled to and coordinating those benefits is necessary in order to ensure you are adequately compensated. During this time, critical decisions need to be made. A decision regarding your workers’ compensation claim can have a beneficial or disastrous effect on a claim under an automobile insurance policy. If your claims are not properly evaluated and coordinated, you may lose valuable benefits. That is why it is important to hire an attorney who is experienced in both workers’ compensation claims and personal injury litigation.

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Generally speaking a personal injury claim in Pennsylvania must be brought within two years of the day the injury occurred. However, there are some exceptions to that general rule. Pennsylvania law specifically extends the time to bring any type of lawsuit for a minor. For the purposes of this rule a minor is anyone under 18 who has not been emancipated. The statute of limitations for a minor does not start until they reach age 18. So, generally speaking, a minor has until age 20 to bring a lawsuit for personal injuries. 

This rule can be very important because sometimes a parent does not know about a potential lawsuit or decides not to bring one for their minor child.  Here is a good example.

A number of years ago a woman came to me asking me to recommend a good divorce attorney to her. She had an eight year old son with cerebral palsy who, among other problems, was fed through a tube surgically implanted in his stomach. Mom was concerned because every time her son would visit his father the child would come home with an infected tube.  Mom was convinced that dad was not taking good care of the tube and wanted an divorce attorney to do something about it.  After recommending a good attorney I asked the mother if anything unusual had happened during labor and delivery. She asked why I was asking and I explained that cerebral palsy can be caused by the baby not getting enough oxygen during birth.  She never knew that.  She said yes and proceeded to tell me the details of the birth.  Ultimately, we concluded that indeed the baby was injured at birth and we recovered several million dollars to help pay for the child’s medical expenses for the rest of his life.

Of course, if you or your child has been injured you should consult with an attorney immediately.  No one should ever wait to talk to an attorney because they think they have plenty of time to sue.  An attorney must determine the statute of limitations on a case by case basis.  However, if you know of a child who is severely injured for any reason contact me immediately even if you think it might be too late to sue.  You may find you still have time.

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It is that time of year. This weekend many of us will be buying a Christmas tree and decorating it for the holiday. There are several things that you should consider in order to make sure that you and your family are safe during this time of year.

Christmas tree fires lead to nearly 40 deaths each year. To try and prevent this, you should always buy a fresh tree. You want the needles to be green and you should regularly water it. If you are purchasing an artificial tree, make sure it is labeled “Fire Resistant.”

When selecting a location in your house for the tree, place it away from fireplaces, radiators or portable heaters and be sure to place the tree out of the way of traffic and do not block doorways.

If you have toddlers in your house make sure the tree is secure. You do not want the toddler to be able to pull the tree over and be hurt. Use non-breakable ornaments so that if they fall off the tree, kids will not be hurt. Consider placing ornaments higher up on the tree so that children will not be able to reach them.

Make sure that the tree is safe for your pets. You do not want them drinking the water in the base or eating ornaments off the tree.  And be sure to avoid using potential choking hazards.

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As the economy continues to restrict the availability of credit to small businesses, many borrowers are finding that lenders with which they have had long and mutually beneficial relationships have been restricting lines of credit or adding additional requisites to extend or renew existing lines of credit.  Principals of newer small businesses may be shopping for credit for the first time, or are presented with a first commercial lease.  One requirement that is becoming ubiquitous in lending and leasing in Pennsylvania is a Confession of Judgment clause in loan agreements, often accompanied by personal guarantees.   This article will give consumers of credit a brief primer on what Confessions of Judgment are, and what rights a borrower is waiving by signing one.

A Confession of Judgment is a written agreement entered between a lender and a borrower that allows the lender to summarily enter Judgment against the borrower upon the occurrence of a stated event, usually default under the terms of a loan agreement or lease.  A Confession of Judgment differs from normal civil actions to collect a debt in that the borrower essentially waives his due process rights to a trial and permits the lender to proceed directly to a Judgment without giving evidence, holding a Court hearing, allowing the borrower to present a defense or even giving the borrower notice that the lender intends to enter the judgment.  A Confession of Judgment provision is designed to give the lender a quick, easy, and low cost method to obtain a Judgment against a delinquent borrower or lessee and to preserve the priority of the lender’s lien. Proceeding upon a Confession of Judgment is extremely quick compared with the time, cost, and expense associated with normal civil actions.

Though their use in commercial transactions seems to be growing, Confessions of Judgment in Pennsylvania actually pre-date the formation of the Commonwealth and enjoy a lengthy history, long being criticized for their susceptibility to be employed in predatory ways against the unwary borrower.  A creature of English common law, the author Charles Dickens noted Confessions of Judgments – then called “cognovits” – with disfavor in his first novel The Pickwick Papers .  The United States Supreme Court, quoting a 1824 New Jersey opinion, noted that Confessions of Judgment are “the loosest way of binding a man's property that ever was devised in any civilized country.”   Many states have altogether invalidated Confessions of Judgment under their respective State Constitutions, and Pennsylvania remains one of the very few jurisdictions that permits them at all.  In 1996, however, the Pennsylvania Supreme Court restricted the use of Confessions of Judgment to non-consumer debts – and now Confessions of Judgment can only be used in association with commercial transactions in the Commonwealth.

Once a Judgment is entered by Confession, a delinquent borrower or lessee will receive a notice from the Court notifying the borrower that the Judgment has been entered.  The lender can then begin execution efforts and levy the borrower’s property within 30 days.  If the loan agreement has a personal guarantee, the lender may confess judgment against the individual and execute against his property in short order.   The only recourse that a borrower at this point is to Petition the Court to Strike or Open the Judgment, and to file a separate emergency Motion to Stay the execution of the Judgment, though it is possible that a Court will not stay execution of a Judgment while a Petition to Strike or Open is pending.  

As one can see, a Confession of Judgment clause in a commercial loan or lease should not be taken lightly, and a prospective borrower or lessee should be aware of the severe consequences if the lender or lessor elects to enforce a Confession of Judgment.

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